Benge's Administrator v. Bowling
Court of Appeals of Kentucky
Case 70—ACTION TO SUBJECT HOMESTEAD APPEAL PROM CLAY CIRCUIT COURT. 1. The warranty to Benge executed in 1881 created a liability which was prior to the acquisition of the homestead. 2. There was no estoppel by the allegations of the pleadings in the action on the covenant of warranty. Citations: Ky. Stats., see. 1702; 7 Am. & Eng.
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Case 70—ACTION TO SUBJECT HOMESTEAD APPEAL PROM CLAY CIRCUIT COURT. 1. The warranty to Benge executed in 1881 created a liability which was prior to the acquisition of the homestead. 2. There was no estoppel by the allegations of the pleadings in the action on the covenant of warranty. Citations: Ky. Stats., see. 1702; 7 Am. & Eng. Ency. of Law, 2, and foot notes; Hanley v. Foley, 18 B. M., 519; Booker v. Bell, 3 Bibb., 173. 1. The estoppel pleaded in the amended rejoinder is a defense to a recovery sought to be had by the appellant. 2. The liability or right of action under which appellant…
1Opinion of the Court
JUDGE PAYNTER
delivered the opinion op the court.
By a deed made in October, 1881, the appellee, Bowling, was liable to the vendee, Benge, on the -warranty contained therein. Before the covenant was broken by the eviction of the vendee, the appellee bought and paid for *576the land which is sought to be subjected to the payment of the judgment which was rendered against the appellee on the warranty. So the eviction of appellant’s intestate took place after appellee had purchased the land to which he is entitled as a homestead, unless the warranty in the deed created a liability, in the meaning of…
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